Series of similar acts

Labour & European Law ReviewWeekly Issue 43823 September 2015

The Fixed-Term Regulations state that claimants can bring a claim within three months of the last of a “series of similar acts”. In Ibarz v University of Sheffield, the Employment Appeal Tribunal (EAT) held that the consistent application of certain policies, practices and procedures to a series of fixed-term contracts by an employer could amount to a “series of similar acts”.

Basic facts

Dr Ibarz had been engaged by the University of Sheffield to teach a number of modules in its Spanish and Latin American Studies course during every academic year from 2004 to 2013. Each year was divided into two semesters with a break in between them.

He complained of less favourable treatment relating to holiday pay, incremental pay progression, regrading, access to pension, wages, and a reduction in his hours under the Fixed-Term Employees Regulations 2002 and the Part-Time Workers Regulations 2000 for the entire time he worked there.

Tribunal decision

The tribunal held that, as there was no overarching arrangement between the semesters, there was no continuity of employment. Instead his employment relationship with the University consisted of a series of discrete periods of fixed-term employment, separated by the period in between the semesters when there was no contractual relationship at all bringing him potentially within the terms of the Fixed-Term (Prevention of Less Favourable Treatment) Regulations 2002 and the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

As complainants have to present their claim to the tribunal within three months of the alleged less favourable treatment under the Fixed-Term Regulations, the tribunal held that the only complaint that was in time was the one made in respect of the most recent fixed-term contract between February 2013 and May 2013.

Dr Ibarz appealed, arguing that the University had consistently applied certain policies, practices and procedures to the series of fixed-term contracts and that these constituted a “series of similar acts” under the exception in regulation 7(2)(a) of the Fixed-Term Regulations. As there was a link between the acts of less favourable treatment, it was just and reasonable for all his complaints to be treated in time.

Relevant law

Regulation 7(2)(a) states that tribunals cannot consider a complaint unless it is presented within three months beginning “with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment, the last of them”.

EAT decision

The EAT overturned the tribunal’s decision, holding that it was based on a mis-reading of the Court of Appeal’s decision in Arthur v London Eastern Railway Ltd (t/a One Stagnated Express). Because of that error of law, the tribunal had not applied the test in regulation 7(2)(a) to ascertain whether the consistent application by the University of its various policies, practices and procedures to the series of employment contracts did amount to a series of similar acts. On that basis, the EAT quashed that part of the tribunal’s decision and remitted the matter to it again for its reconsideration.

The EAT also ordered the University to pay Dr Ibarz the fees incurred for issuing the appeal and the hearing fee, even though Dr Ibarz had not personally paid them as they had, in fact, been paid by the UCU acting on his behalf.

Comment

The decision clarifies the position on time limits for fixed-term employees and part-time workers so that earlier acts of less favourable treatment may be in time for a tribunal claim provided there is a link with later acts.

The decision is also significant since it makes clear that trade union members can recover fees where these are paid on their behalf by a trade union. The EAT considered that an earlier contrary EAT decision made solely on the papers and without the benefit of legal argument was wrong.